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Tokavar v Vunadadir [1960] PGLawRp 6; [1964] PNGLR 119 (1 July 1960)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 119 - Tokavar and Ors v Vunadadir-Toma-Nanga Nanga Local Government Council

[1964] PNGLR 119

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TOKAVAR AND OTHERS

V

VUNADADIR-TOMA-NANGA NANGA LOCAL GOVERNMENT COUNCIL

Port Moresby

Gore J

1 July 1960

EVIDENCE - Admissibility - Village Book - Residence - Onus of Proof Native Village Council Regulations 1950 - Native Local Government Council Regulations 1950 (No. 6 of 1950, No. 37 of 1952, No. 2 of 1955, Regs. 3, 81 (1), 82, 83 and 109).

Upon a complaint of failure to pay Council tax, a magistrate in the Court of Native Affairs admitted the �Village Book�, containing the names of the appellants in a record of a census, as evidence of their residence for a continuous period of more than four months in a tax-year in the area of the Council�s jurisdiction.

Regulation 81 (1), substituted by Reg. 7 of No. 2 of 1955, of the Native Local Government Councils Regulations 1950, provided that a native liable to pay tax shall not without reasonable excuse proof whereof lies upon him refuse or fail to pay the tax and the magistrate relied upon this provision to place upon the appellants the onus of proving that they were not resident in the Council�s area for the period alleged. In the absence of such proof he found accordingly that the appellants were resident within the area during the relevant period and convicted them.

On appeal to the Supreme Court:

Held:

That the �Village Book� was wrongly admitted in evidence: it was not a public document within the common law as to the admissibility in evidence of such documents.

Held:

Further, that Regulation 81 (1) had no application unless and until a native was found to be liable to pay tax and, therefore, did not apply to the proof of residence, the onus whereof was upon the respondent.

Meaning of �resided� considered.

Lilley v. Pettit[xciii]¹�referred to.

N1>The facts are fully set out in the judgment.

Counsel:

Jones, for Appellants.

Pratt, for Respondent.

C.A.V.

GORE J:� This is an Appeal from a Court for Native Affairs by Tokavar and seven other natives who were convicted and sentenced to one month�s imprisonment for failure to pay the tax of �4 to the Vunadadir-Toma-Nanga Nanga Local Government Council before 30th April, 1959, in contravention of the provisions of Regulations 81 (1) and 109 of the Native Local Government Councils Regulations 1949 and as amended.

The grounds of the Appeal are:

N2>(1)����� That the Magistrate was in error in admitting the Village Book of Tingenagalip in evidence as proof of residence of each of the appellants.

N2>(2)����� That the Magistrate was in error in finding that the appellants and each of them were resident in the village of Tingenagalip for a period of not less than four months during the year 1959.

N2>(3)����� That the Magistrate was in error in finding that the onus was on the appellants and each of them to prove that they were not residents of the village of Tingenagalip for a period of four months during the year 1959.

N2>(4)����� That the convictions were against the evidence and the weight of evidence.

With regard to ground (3) it was conceded by Mr. Pratt for the Respondent that the onus was not on the Appellants and each of them to prove that they were not residents of the village of Tingenagalip for a period of four months during the year 1959.

In this instance the Regulations governing the levying of village tax are those of No. 6 of 1950 because at the time of the alleged failures to pay the tax, Regulation No. 25 of 1959 had not been promulgated.

Regulations 82 and 83 of the 1950 Regulations have been amended by the Regulations of 1959 but these amendments are not relative to this Appeal.

By Regulation 82 of the 1950 Regulations, �Council Tax shall be payable by all able-bodied male natives apparently above the age of seventeen years at the time when the tax falls due, who are resident in a Council�s area, and by such female natives apparently above the age of seventeen years resident in a Council�s area who have become eligible to vote.�

Regulation 83 of the same Regulations provides that �for the purpose of Council taxation any native who has resided for a continuous period of more than four months in an area under a Council�s jurisdiction shall be regarded as being resident in the area provided that a native shall not be liable to pay tax to more than one Council in respect of any one year.�

It will be seen then in Regulation 83 that it is necessary for tax liability that a native should have resided for a continuous period of more than four months in the area under the jurisdiction of the Council which imposes the tax. It does not seem to say so definitely, but it must mean in any one tax year.

In Regulation 3 of the Native Local Government Councils Regulations 1950 there is a definition of �native resident within the area of the Council� but this definition does not apply to Regulation 83 because the opening words of Regulation 3 are - �in these Regulations unless the contrary intention appears,� and the Regulation goes on to define �native resident within the area of the Council.�

It seems to me goes that the contrary intention does appear in Regulation 83 of the 1950 Regulations, for it says - �For the purposes of Council Taxation any native who has resided for a continuous period of more than four months in the area...shall be regarded as being resident in the area.� One is a definition for the general purposes of the Native Local Government Councils Regulations, while the other is an explicit regulation for the purposes of Regulation 83, and one must look to it only for the residence qualification for tax liability.

Regulation 83 was no doubt framed to include natives from other areas and foreign natives who do not have the area interests contained in Regulation 3. But one cannot divide the two classes, those who have area interests under the definition, and those who have not. The tax qualification in Regulation 83 as to residence must apply to all. A native might be maintaining a permanent house, for example, within the area, yet could be absent from the area for the whole of a tax year; indeed the Village Book discloses that this could be so. He could not be liable, just because he held the house for more than four months but was not residing within the area.

To become liable the native must have �resided�, that is, �dwelt� within the area for more than four months continuously.

The admission in evidence of what is known as the �Village Book� was important for the prosecution of the eight accused before the Court for Native Affairs because the oral evidence tendered was meagre. It was necessary for the prosecution to prove not only that the eight accused resided within the area but that they had so resided continuously for a period of more than four months.

There was some evidence by the two witnesses, Michael Tibu, the Council Clerk, and the Police Constable Rota, that the accused �were residents� of Tingenagalip but not that they had resided continuously for more than four months within the area.

The evidence of these two witnesses did not go far enough. Perhaps they could not go any further. On the oral evidence, therefore, I am unable to find that the eight accused were taxpayers.

The argument was mainly on the admission as evidence of what is known as the Village Book, for it was upon the inclusion of the names of the Appellants in this Book that the prosecution before the Magistrate for Native Affairs relied to obtain a conviction. The Magistrate held the Book was admissible and upon being admitted the burden of proof was thrown upon the Appellants to show that they were not taxpayers. Of course this was not so, and as I have remarked earlier, Counsel for the Respondent conceded that the onus was not on the Appellants to prove the negative.

The Magistrate relied upon Regulation 81 (1) substituted by Regulation 7 of No. 2 of 1955, which provides that �a native liable to pay Council Tax shall not without reasonable excuse proof whereof lies upon him refuse or fail to pay the tax.� The Magistrate was in error in relying upon Regulation 81 (1) because it has no application unless and until the native is found to be liable to pay tax.

There are in law what are known as public documents which are admissible as prima facie evidence of the contents thereof. The admissibility of public documents are as a rule governed by statute but if they are in truth public documents but their admissibility is not given force by statute, they may be admitted at Common Law provided that their public character is shown. The admission of public documents are exceptions to the hearsay rule on the general grounds that they were made in the course of official duty respecting facts which were of public interest recorded for the benefit of the public and available for consultation by members of the public. I think the document must be made for the purposes of the public.

The Village Book has no statutory authority. During the argument on the Appeal it was not claimed that it had statutory authority and no-one could suggest its origin. It does not appear by whom it was authorised nor by whom it was prepared and printed.

The Village Book is not one which is kept for the purpose of recording the names of probable taxpayers. It appears to be a book for the purpose of recording the names of villagers, their births, deaths and marriages, and general matters in relation to the village for Departmental information. That it is used for the purpose of disclosing probable taxpayers would appear to be incidental because the Village Book of Tingenagalip was first opened on 8th November, 1949, and so before the Regulations No. 6 of 1950, which imposed village Council Tax, were made. It is from this very untidy book that the information is gained from which a native becomes liable to tax.

Now the Appellants were charged and convicted for failure to pay the tax for which it was claimed they had become liable. Their names were obtained from the Village Book. It has been argued for the Respondent that the Book is a public document and should be admitted at Common Law on the ground that it is a book made for the purpose of the public making use of it and being able to refer to it. Vide Lilley v. Pettit[xciv]².

In my view the Village Book is not kept for the purpose of the public and for the public to have access to it. The very nature of the book and its contents show that it is purely for Departmental purposes. Indeed the Book contains material which I am sure the public should not be allowed to see. The Village Book was wrongly admitted as evidence.

Even if the Book was admissible, it would not be prima facie evidence, for an examination of its contents reveals that the information contained therein is too uncertain in any event to found a prosecution for failure to pay tax.

I uphold the Appeal and quash the convictions recorded against the eight Appellants, with costs.

Solicitor for the Appellants: D. F. Jones.

Solicitor for the Respondent: S. H. Johnson, Crown Solicitor.